The Struggles of Obama’s Detention Policy Task Force

July 23, 2009

Cross-posted at Balkinization

President Obama's detention policy task force
has said it needs more time to complete its work. Small wonder: when
you start with the premise that certain detainees are "too dangerous to
release" and then try to come up with legal procedures that will
support that pre-determined outcome, you run into some sticky legal,
practical, and political problems. (I've written about the
administration's "sentence first, verdict afterwards" approach here.)


The
good news is that the Obama administration appears to be genuinely
wrestling with the problems that follow from reverse-engineering
systems of justice to guarantee continued detention. The prior
administration didn't bother with legal window dressing, let alone
worry about the constitutional shortcomings of such an approach. The
bad news is that the Obama administration still thinks it can overcome
those problems if it gives detainees a carefully circumscribed menu of
rights that falls somewhere between no rights at all (the Bush
approach) and the rights they would get in any existing American system
of justice.

The preliminary report of the task force,
which focuses on the use of military commissions, doesn't reveal any of
this internal struggle. This is a public document, intended for public
consumption. It doesn't contain any real analysis or recommendations;
those presumably appear in other, non-public documents. Instead, it
sets forth the decisions already made by the President (and already
made public) and justifies them. It's an advocacy piece, pure and
simple.

Read the rest here